OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW
A grаnd jury indicted appellant for the offense of theft. V.T.C.A. Penal Code § 31.03. The indictment alleged that the grand jury did not know the name of the property owner at the time the indictment was returned. At the end of the jury trial on this indictment, the trial court granted appellant’s motion for instructed verdict. The State subsequently secured a second indictment which charged appellant with theft of the same property on or about the same day as averred in the original indictment, though the new allegation included the name of thе complainant. Appellant filed an application for pretrial writ of habeas corpus in the trial court on the ground that trial on the second indictment was barred by the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution. Spеcifically, she claimed that she could not be retried for an offense of which she had already been acquitted. The trial court denied the requested relief. In one point of error to the court of appeals, appellant argued that the trial court erred in not dismissing the second indictment. The court of appeals agreed with appellant and reversed the judgment of the trial court, rendering “judgment that the second indictment be dismissed.”
Coleman v. State,
I.
The first indictment charged that, on оr about April 1, 1992, appellant stole a lawn mower and a tiller from a person “unknown to the grand jury.” Appellant was acquitted of this offense when the trial court granted appellant’s motion for directed verdict. The trial judge did not explicitly state why she grаnted the motion, though she did state the following:
[T]he Court believes that the allegation unknown to the Grand Jury applies to those cases where it cannot be determined with reasonable certainty what object or instrument of debt existed or who the owner wаs ... That is not the case in this case. I think the evidence established with reasonable amount of certainty either it belonged to HPD (Houston Police Department) or Home Depot, and with more reasonable certainty the owner in this case was prоperly HPD Officer Macejewski. 1
*98 At the pretrial hearing on appellant’s application for writ of habeas corpus, appellant called to the stand the assistant district attorney (ADA) who tried the first cause. Appellant elicited testimony from the ADA to the effect that at the second trial the State would produce the same evidence it used at the first trial; that the conduct alleged and the items stolen in the second indictment were the same as in the first indictment; and that the difference between the two prosecutions was the State’s choice to name Home Depot through its agent R. Reese as the owner, and hence to focus on that evidence rather than the evidence of HPD as owner. The trial court was unpersuaded by this evidence and denied appellant relief.
In the court of appeals, relying primarily on
Fulmer v. State,
To support her contention in this Court that the two prosecutions are for the same offense, appellant relies on the opinion of the court of appeals. The State reasserts the arguments it presented in the court below. While we do not think that either analogy is precise or controlling, we ultimately agree with appellant that her prosecution under the second indictment is for the same offense of which she has been acquitted and is hence barred by the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution.
II.
Appellant was initially indicted for theft of a tiller and a lawn mower. At the close of the evidence at the first trial to the jury, the trial court granted appellant’s motion for instructed verdict. An instructed verdict is the functional equivalent of an acquittal for double jeopardy purposes.
Smalis v. Pennsylvania,
At the outset we note that this cause does not present the same question as that decided by the Supreme Court in
Blockburger v. United States,
The State points to
Fulmer v. State,
In Smotherman and Fulmer, the dеfendants were acquitted after the first trials. The State made a mistake in pleading the complainants in those cases, and the defendants were acquitted of offenses against the erroneously pleaded people. We said that the State could retry the defendants in those cases for offenses committed against patently different people. In this cause, however, we can be certain that appellant was acquitted of the same offense in the first trial for which the State wаnts to try her in the second, though the first indictment stated that the complainant was unknown. At the hearing on appellant’s pretrial application for habeas corpus, the State affirmed that the evidence it presented at the second trial would bе the same as that presented at the first trial. The offenses alleged in each indictment are the same. In the first indictment, the State has merely taken advantage of the pleading convention authorized by V.A.A.C.P., Articles 21.07 and 21.08. 3
It may be contended that it is inconsistent with
Fulmer
and
Smotherman
to inspect the actual trial рroof; that as in those cases we should only examine the indictments to determine whether the offenses are the same. Yet it must be part of our present analysis to look at the proof when the State has alleged some aspect of the оffense in a prosecution as unknown. See
State v. Houth,
Quite simply, the State now wants to try appellant again for the same offense, using the same evidence. The Double Jeopardy Clause prohibits this. Once the State goes to trial on an indictment alleging some element of the offense as “unknown to the grand jury” and jeopardy attaches and terminates, the State may not retry a defendant for the same violation of the same penal statute simply by alleging a real name instead of “unknown.” This is a manifest double jeopardy violation and appellant is entitled to habeas corpus relief. Accordingly, the judgment of the court of appeals is affirmed.
Notes
. Articles 21.07 and 21.08 of the Texas Code of Criminal Procedure permit the grand jury to allege unknown ownership of stolen properly where that is the case. Though the ownership be unknown to the grand juiy when it returns the indictment, the State may prove the specific person at trial. See, e.g.,
Huffman v. State,
In the instant cause, the record reflects that HPD set up a "sting” operation to apprehend appellant, whom they believed was stealing and/or "fencing” property such as that alleged in this case. Home Depot participated in this to the extent that it gave the tiller and the lawn mower, in exchange for a sum of money, to HPD knowing that HPD would use it as part of its operation. Whether the parties intended the money as a purchase price or merely as a security, and hence whether title ownership lay in HPD or Home Depot, is unclear. This is why the State seems to have vacillated in its election of owners.
The State was presumably aware of the foregoing information at least from the time of the filing of the offense report in this matter. Perhaps based on this the trial court thought that the grand juiy did in fact know who owned the
*98
allegedly stolen items. Or perhaps the trial court thought that the State failed to prove due diligence once it produced evidence of a specific owner at trial. In any event, appellant was acquitted of the offense alleged in the first indictment. See
United States
v.
Martin Linen Supply Co.,
. This is but a version of our fatal varianсe law expressed, e.g., in
Arceneaux v. State,
. See note 1, supra.
. While the State would not be able to obtain a conviction if it could not prove that the element was indeed unknown to the grand jury, it nonetheless would be able to perfect its case and subject defendants to continued harassment and expense with impunity. As the Supreme Court said in Green v. United States:
”[t]he underlying idea [of the Double Jeopardy Clause], one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the pоssibility that even though innocent he may be found guilty.”